What must a foreign copyright holder do to become eligible for copyright protection in China? Must the copyright holder register the work with a Chinese government entity?

Because the United States and China have entered into bilateral agreements and are signatories to various copyright treaties, the rights holder may enjoy copyright protection within China, even if the work was first published outside of China. Works of foreigners first published in China are also eligible for protection within China.

A work by a foreign author that is published in China within 30 days after it is published outside China is deemed as simultaneously published in China.

What is the duration of copyright protection in China?

Fifty years, or the life of the author plus 50 years in the case of an individual author.

Where should a copyright holder file a complaint alleging copyright infringement?

A copyright owner may choose between two channels to seek redress for copyright infringement: a) administrative adjudication by the local copyright bureau; or b) judicial adjudication beginning with the local intermediate People’s Court.

If a copyright holder selects the administrative channel, can the owner obtain compensatory damages?

No. Only a court can award compensatory damages to a copyright holder. If the court finds the plaintiff has met its burden of proof, the maximum amount to be awarded to the copyright holder is RMB500,000 (US$62,500) in cases where illegal gain is difficult to determine.

What administrative remedies may be imposed against the infringer by the local copyright bureau?

Administrative Fine: The local copyright authority may order an administrative fine not exceeding three times the illegal revenue received by the infringer, provided that the copyright bureau makes a factual determination that the infringement has caused harm to social and public interests. If it is difficult to calculate the illegal revenue, the copyright bureau may impose a fine not to exceed RMB100,000. These fines are not compensatory damages paid to the copyright holder, but are paid to the Chinese government.

Confiscation of the Means of Manufacture: “Means of manufacture” refers to items used to produce the infringing work, including materials, tools, and equipment.

Referral to the Procuratorate: In instances where the “circumstances are serious,” the copyright authority may refer the case to the Procuratorate for criminal prosecution.

Note: Copyright owners would like the revenue to be calculated based upon the market value of legitimate works, rather than the market value of the illegitimate work. They reason that if the fines were higher, infringers would be put out of business.

If a party to an administrative proceeding before a local copyright authority objects to the administrative penalty, may either party appeal to the people’s court?

Yes, within three months after receiving written notification of the decision.

What are the criteria for criminal prosecution?

The local copyright authority may refer to the Procuratorate serious offenses, defined as an acts that “seriously prejudice the public interest” when the illegal revenue to the infringer from the illegal activity exceeds RMB30,000, or the value of the illegal goods are worth RMB 50,000.

What are the minimum and maximum criminal punishments?

An infringer may be sentenced to less than 3 years imprisonment or probation if the criminal threshold is reached as stated above. The maximum punishment (3-7 years imprisonment) may be imposed under serious circumstances.

Is it possible to prevent the infringer from destroying evidence?

Yes. A copyright holder may seek a preliminary injunction from the court, but is required to post a bond.

Source: U.S. Embassy